Fordie Walker and H. B. Smith were candidates in the Second Democratic Primary in August 1951, for the office of supervisor of District Two of Simpson County. The votes, as tabulated by the Executive Committee, showed 617 for Walker and 612 for Smith; and Walker was declared the nominee.
Following this action, Smith filed a contest with the Executive Committee, with particular reference to 3 precincts, and, when it was disallowed, he sought and obtained a judicial review as provided by the Corrupt Practices Act, Article 2, Chapter 1, Vol. 3, Code 1942.
On that hearing the special tribunal, composed of the presiding judge and the election commissioners, held that the result of the primary was in doubt, and ordered another primary at all 6 of the precincts in the District. Walker prosecutes a direct, and Smith a cross, appeal.
Smith’s petition, in each instance, alleged violation of, and noncompliance with, the provisions of Chapter 237, Laws of 1950, in a number of particulars. For instance, the absent voter envelopes bore the officer’s seal, but Smith contended that the impression of the seal thereon did not touch the lids of the envelops as required by Section 9 of said chapter, and, on that account, all of such ballots were illegal and void. Walker received 61 and
Walker contended before the special tribunal, and contends here, that the petition was insufficient, and that the petitioner made additional allegations before the special tribunal, which were not contained in the petition before the Committee. This contention was overruled by the trial court. This Court has held that the petition on appeal to the special tribunal may not overrun the allegations of the original petition before the Committee. Fillingane v. Breland, Miss.,
The bill of exceptions discloses that the irregularity in connection with the impression of the seal on the envelopes arose on account of an error by the printer. Thus, to invalidate the ballots on that account would cause the result of the election to be determined by accident, inadvertence or mistake, when some of them were otherwise legal. The special tribunal held that this provision of the law is directory and not mandatory.
We think that the trial court was correct in so holding. Section
9
of said Chapter 237, supra, does require that “the officer shall thereupon impress his seal upon the lids of said envelop in such manner and so firmly that same cannot be opened without detection.” This is doubtless a salutary provision. But Section 10, of said chapter, which deals with the reception and counting of absent voter ballots, makes no reference to improper impression of the officer’s seal, and contains no mandate for the rejection of a ballot in an envelope on which the seal has not been impressed in accordance with Section 9 thereof. Consequently, in the absence of such a requirement, the provision must be held to be directory only. In Hunt v. Mann,
It must be kept in mind that the legislature was endeavoring to provide means for absent voters to exercise their right of suffrage. The result, therefore, ought not to be lightly tossed aside, unless the irregularity has prevented a full, fair and free expression of the public will. Especially is this true when the special tribunal found as a fact that there was no fraud or intentional wrongdoing in this regard. Gregory v. Sanders,
The additional grounds of contest revolved around noncompliance with other provisions of Chapter 237, supra. Suffice it all to say, Smith sought not to void the election, but rather to show that, in fact, he was nominated by the majority of the qualified votes.
The presiding judge and the commissioners, all concurring, declared to be illegal and void the series of ballots hereinafter enumerated, which action we approve and affirm for the several reasons hereinafter to be stated:
(1) Four regular ballots, one of which was voted by a perpendicular mark, and the other 3 being uninitialed. Three of these ballots were for Smith and 1 for Walker. The action of the court automatically reduced Walker’s vote to 616 and Smith’s to 609. This
(2) Fifty absent voter ballots, where the clerk was designated to deliver, but instead, he placed them in the ballot boxes and delivered each of the boxes locked to a manager on the afternoon before the primary. This action was correct, because the manner of delivery was in violation of Section 10, Chapter 237, supra.
(3) About 20 absent voter ballots, where the clerk himself procured doctors’ certificates, about 10 of which were also double, that is, they were used for both primaries. This action was correct, because the certificates were not obtained in conformity with Section 5, Chapter 237, supra.
(4) Two absent voter ballots of Mr. and Mrs. B. S. Stevens, where the affidavits on the application and on the envelopes were not subscribed. This action was correct, because by Section 6, Chapter 237, supra, the elector “must execute the following form” of application, and in each instance, it is required to be signed by the affiant, and “subscribed and sworn to” before a notary public, or other qualified officer.
(5) Two absent voter ballots, where the persons designated to deliver were not qualified electors. This action was correct, because by Section 7, Chapter 237, supra, the person designated to deliver must be a qualified elector of the precinct where the ballot is delivered.
(6) Two absent voter ballots delivered and counted the day after the primary. This action was correct, because there is no authority whatever for one to vote on the day after the primary.
(7) One absent voter ballot, voted under power of attorney. This action was correct, because there is no authority whatever for such voting.
(9) One absent voter military ballot, which did not state the age of the voter. This action was correct, because under Section 3197, Code of 1942, the voter must make oath that he is “above the age of twenty-one years ’ ’.
It will be seen, therefore, that the special tribunal declared 80 of the absent voter ballots to be illegal and void, leaving only 25 of such ballots legal and valid.
The special tribunal further found as a fact that it was not possible to tell for whom the illegal ballots were cast, because they were commingled with the other ballots.
Thus, the question is posed as to whether or not the result of the primary was in doubt, and as to whether or not Walker should have been declared the nominee.
In the case of Hayes v. Abney,
But, in the case of Trahan v. Simmons,
Likewise, in the case of Simmons v. Crisler,
Only 25 of the 105 absent voter ballots for supervisor were held to be legal. But Smith did not undertake to show how many of the 80 illegal ballots were cast for his opponent. Since he received 44 absent voter ballots himself, at least a large number of his ballots were illegal. Both candidates received illegal ballots, but just how many were received by each does not appear. Smith was the contestant. The burden of proof was on him. He did not meet it. So far as this record is concerned, all of his absent voter ballots could have been illegal, in which event, his illegal ballots would be greater in number than those of his opponent.
The result of the election was not in doubt. The executive committee declared that "Walker received a majority 'of the qualified votes. The proof was not sufficient to show that the committee was in error.
In view of this conclusion, it is not necessary to give consideration to the other assignments, which involve
The judgment of the special tribunal is, therefore, reversed, and a judgment will be entered here, upholding the action of the Executive Committee in declaring Walker to be the nominee of the Democratic party. Since Walker’s name should have been placed on the ticket as the nominee in the regular election in November 1951, but, because of the error of the special tribunal, his election was not consummated, it is further ordered that an election be called and held, as provided by Section 3187, Code of 1942.
Reversed; judgment here; and election ordered.
On Suggestion of Error.
Trahan v. Simmons, 1941,
However, the rule requiring the contestant to meet the above-stated burden of proof has been applied in primary election cases since the enactment of the Cor
What constitutes such a substantial failure to comply in material particulars with the requirements of the statutes in a primary election, which would fall within the foregoing classification so as to require the throwing out of a box or calling a new election, depends upon the facts and circumstances in each particular case, including the nature of the procedural requirements violated, the scope of the violations, and the ratio of illegal votes to the total votes cast. For example, in May v. Layton, supra, 836 votes out of a total vote of 2213 were held to be illegal, and it was said that this result, by holding void more than one-third of the total votes cast, made it impossible to determine the will of the voters and constituted such a substantial failure to comply with the statutes as to require a new election.
Appellee cites Harris v. Stewart, supra, as supporting his contention, but that case was decided upon its peculiar facts. It went off on a demurrer by the contestee to the contestant’s petition, in effect admitting the truthfulness of the averments of the petition. Some of these were that there was a general practice and custom in the county to allow disqualified persons to vote, and that the manag
In the present case, there were 80 illegal votes, and a total vote of 1229, the illegal votes being only 6.5% of the total votes cast. We do not think that the present facts would warrant the court in saying that there is such a substantial failure to comply in material particulars with the statutes as to invalidate the election, as occurred in May v. Layton, supra, and only under such a state of facts is the contestant’s burden of proof reduced from a showing that the contestee’s illegal votes if eliminated would change the result, to proving only that enough illegal votes were cast to change the result or leave it in doubt. Appellee therefore failed to meet his burden of proof in contesting Walker’s nomination.
Suggestion of error overruled.